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646 So. 2d 117

F.D.M. v. C.D.S.

Court of Civil Appeals of Alabama

Decided July 29, 1994

Court of Civil Appeals of Alabama · decided 1994-07-29

Key passage — most relied on by later courts

“"(b) In dependency cases, the parents, guardian or custodian shall be informed of their right to be represented by counsel and, upon request, counsel shall be appointed where the parties are unable for financial reasons to retain their own. "The court shall also appoint counsel for the child in dependency cases where there is an adverse interest between parent and child or where the parent is an unmarried minor or is married, widowed, widowered or divorced and under the age of 18 years or counsel is otherwise required in the interests of justice."”

quoted by 3 later decisions, including 685 So. 2d 750 - Kpb v. Dca, 5 So. 3d 1253 - R.H. v. D.N.

“shall also exercise exclusive original jurisdiction of ... [p]roceedings to determine custody... of a child when the child is otherwise before the court.”

quoted by 2 later decisions, including Gh v. Kg, 999 So. 2d 544 - Ttt v. Rh

Good law ✅— No negative treatment on recordhow we know

Decided 1994-07-29

How this case has been cited

Cited by 7 later decisions — most recently August 2010

6 state decisions

40199420002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

YATES, Judge.

¶1F.D.M. (mother) filed a paternity action in the juvenile court against C.D.S.; he admitted paternity of the child. He was ordered to pay temporary child support of $243 per month, plus an additional $7 per month toward reimbursing the State for assistance it had provided in the amount of $1,332. At that time, he advised the court that he intended to seek custody of the child.

¶2On July 16, 1993, the father filed a “Petition For Custody,” and after a hearing, the court awarded “legal and physical custody” of the child to the father. The mother ap*118peals, contending that her due process rights were violated because the trial court failed to inform her that she had the right to be represented by a lawyer and that if she was financially unable to retain one herself, the court would appoint one.

¶3At the hearing on the custody petition, the father was represented by counsel, and the child was represented by a guardian ad litem; the mother was not represented by counsel. The mother correctly points out that parents of a child in a dependency ease must be advised of their right to be represented by counsel and to have counsel appointed, pursuant to § 12-15-63(b), Ala.Code 1975, if they are unable to retain their own because of financial reasons. She further argues that the issue of custody would not have been within the jurisdiction of the juvenile court unless the father alleged that the child was dependent, as he did in his petition, and that, pursuant to § 12-15-30(a), Ala. Code 1975, that allegation made this a dependency case; she contends that only that fact brought this case within the juvenile court’s jurisdiction. We disagree.

¶4Although the father did allege dependency in his petition seeking custody, it is clear that the trial court treated this action as one to determine appropriate custody, not as a dependency action. Therefore, the mother was not entitled to be advised concerning counsel. Following the paternity determination, the father filed a “petition for custody.” Testimony presented at the hearing concerned the care of the child that had been provided, and could be provided in the future, by the father and his present wife. Additionally, visitation rights of the mother were addressed.

¶5The juvenile court exercises exclusive original jurisdiction of proceedings to determine custody when the “child is otherwise before the court.” § 12-15-30(b)(l), Ala.Code 1975. The record indicates that the child was “before the court” in the paternity hearing; that the father indicated at that hearing that he would seek custody; and that the child support ordered at that time in the juvenile court was to be reviewed when the issue of custody was resolved; therefore, the custody matter was properly before the juvenile court for reasons other than the father’s allegation of dependency.

¶6AFFIRMED.

ROBERTSON, P.J., and THIGPEN, J., concur.
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